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2003 DIGILAW 844 (PAT)

Suresh Prasad Singh v. State Bank Of India

2003-08-13

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. Various reliefs have been sought for in this writ application but when the matter is taken up for hearing, Mr. Shivendra Kishore confines the writ application to the relief of quashing the order dated 11,6.2001 (Annexure-7) whereby the petitioner has been informed that he is not eligible for pension under the State Bank of India Employees Pension Fund Rules. Further prayer made by the petitioner is to issue a writ in the nature of mandamus commanding the respondents to treat the period of suspension till reinstatement i.e. 19.2.1932 to first week of April, 1988 and 23.5.1989 to 10.5.1999 as pensionable service. 2. Short facts giving rise to the present application are that the petitioner at the relevant time was working in the Junior Management Grade Scale-I with the respondent-State Bank of India. A criminal case was instituted against him on 1.2.1982 and was put under suspension by order dated 19.2.1982. Later on, a departmental proceeding was initiated against him and memo of charges served by order dated 29.12.1982 and ultimately by order dated 30.7.1986 he was removed from service. The order of the disciplinary authority of removal dated 30th of July, 1986 states as follows: "I, therefore, inflict upon you the penalty of "removal from service" with immediate effect in terms of Rule 49 (g) of the State Bank of India (Supervising Staff) Service Rules. I also order that the period spent by you under suspension be treated as one of absence from duty, i.e. you would not be entitled to any salary and allowances other than the subsistence allowance already paid to you." 3. Aggrieved by the aforesaid order of the disciplinary authority petitioner preferred appeal and the appellate authority in its meeting held on 12th of December, 1987 decided to modify the punishment in the following words: "The Board has considered the appeal of Shri S.P.Singh against the order of the Disciplinary Authority imposing the penalty of "removal from service" in terms of Rule 49 (g) of the State Bank of India (Supervising Staff) Service Rules, along with the other related papers. The Board feels that the aforesaid penalty is unduly harsh and not commensurate with the gravity of the charges proved against Shri Singh, and, therefore, resolved that the order of the Disciplinary Authority be and is, hereby modified and Shri Singh be inflicted the penalty of reduction in time scale to the lowest stage in Junior Management Grade Scale-1 in terms of Rule 49 (e) of the State Bank of India (Supervising Staff) Service Rules. The Board also resolved that the "period from the date Shri Singh was placed under suspension to the date of his re-joining his duties be treated as one under suspension, i.e. he shall be entitled to only subsistence allowance for the entire period." (Underlining mine) 4 In view of aforesaid order of the appellate authority petitioner was reinstated in service and joined some time in the first week of April, 1988. 5. As stated earlier, a criminal case was also instituted against the petitioner and the trial court by its judgment dated 27.3.1989 convicted him of the charges. Thereafter by order dated 23.5.1989 petitioner was suspended and later on by order dated 11.11.1989 on account of his conviction he was dismissed from service. Appeal preferred by the petitioner against the order of conviction also failed.. However, petitioner succeeded in the revision application preferred before this Court. This Court by judgment dated 16th of March, 1988 passed in Criminal Revision No. 392 of 1991 allowed the revision application, set aside the order of conviction and acquitted him of the charge. While doing so this Court observed as follows: "Before parting with the records of this case, however, I would like to make it clear that the petitioner in this case has been given the benefit of a very thin doubt and his acquittal in the criminal case, therefore, would have no effect on any disciplinary proceeding that might have been initiated against him by his employer, the bank." 6. Petitioner brought the fact of his acquittal by this Court to the notice of the appellate authority who directed for reinstatement of the petitioner in service by order dated 4.5.1999 in the following words: "I have carefully examined the points raised by the appellant vis-a-vis the records of the case and having applied my mind independently observe as under: (i) The conviction, which was the basis for "Dismissal" order by the Appointing Authority, has been set aside by the Honourable Patna High Court i.e. the ground on which he was dismissed is now non-existent. This was the only ground for the disciplinary action and dismissal order of the Appointing Authority and since this ground is removed, in my view, the official should be reinstated. (ii) However, no backwages will be payable. Therefore, reinstatement is to have Gurrent effect and salary and allowances etc. will be paid with prospective effect only." 7. In the light of the aforesaid order petitioner joined the service on 10th of May, 1999. 8. It seems that the respondent-Bank came out with a scheme of voluntary retirement. Petitioner opted for voluntary retirement under the aforesaid scheme and by communication dated 26.3.2001 (Annexure- 9) his request for retirement under the scheme was accepted. Petitioner requested for grant of pension and by. the impugned communication dated 11th of June, 2001 (Annexure-3) petitioner was informed that his total pensionable service is only 17 years, 4 months 30 days and as such he is not eligible for pension under the State Bank of India Employees Pension Fund Rules. 9. Mr. Shivendra Kishore appears on behalf of the petitioner whereas respondents are represented by Mr. Shailesh Kumar Sinha, Senior Advocate. 10. It is common ground that in case the period of suspension is not counted as pensionable service, petitioner shall not be covered under the State Bank of India Employees Pension Fund Rules. 11. Mr. 9. Mr. Shivendra Kishore appears on behalf of the petitioner whereas respondents are represented by Mr. Shailesh Kumar Sinha, Senior Advocate. 10. It is common ground that in case the period of suspension is not counted as pensionable service, petitioner shall not be covered under the State Bank of India Employees Pension Fund Rules. 11. Mr. Shailesh Kumar Sinha appearing on behalf of the respondents submits that while reinstating the petitioner in service by order dated 30th of July, 1986, it was made clear that the period spent by the petitioner under suspension shall be treated as absence from duty and the petitioner shall not be entitled to any salary and allowance other than the subsistence allowance already paid to him and while modifying the said order, by order dated 25.3.1988, it was made clear that the petitioner shall be entitled only for the subsistence allowance for the entire period, petitioner cannot be allowed to challenge the said order after he had sought voluntary retirement while claiming pension. For the same reason Mr. Sinha submits that the order dated 4th May, 1999 can not be questioned. According to Mr. Sinha the prayer made by the petitioner, if granted, shall amount to testing the validity of the orders passed as back as on 25th of March, 1988 and 4th May, 1999 which is not permissible. In answer thereto Mr. Shivendra Kishore, appearing on behalf of the petitioner submits that white passing the aforesaid order no decision was taken as to the manner in which the period of suspension shall be treated and this question arose only after petitioner got voluntary retirement and admissibility of pension to the petitioner was being considered. He highlights that no decision having been taken nothing prevents the petitioner from raising this question at this stage. 12. Rule 21 of the State Bank of India Employees Rules inter alia provides that such period of suspension shall count as pensionable service as the authority which passed the order of reinstatement declares the same to be pensionable at the time of reinstatement of the employee. Thus at the time of reinstatement declaration has to be made by the authority as to whether the period of suspension shall count for the purpose of pension or not. Thus at the time of reinstatement declaration has to be made by the authority as to whether the period of suspension shall count for the purpose of pension or not. The order dated 12th December, 1987 has not made any declaration but has made it specifically clear that for the period of suspension petitioner shall be entitled only to the subsistence allowance. Further the order dated 4th of May, 1999 has clearly stated that the order of reinstatement is with prospective effect and salary, allowance etc. shall be paid with prospective effect. Thus both the order directing the petitioner for reinstatement in service did not make any declaration that the period of suspension shall count as pensionable service. Hence it cannot be said that the authority directing for reinstatement of the petitioner in service has not taken any decision in regard to the period of suspension. 13. Mr. Shivendra Kishore submits that from a plain reading of rule 21 of the Rules it is evident that a declaration has to be made by the authority as to whether the period of suspension shall count as pensionable service or not. No declaration as such has been made. In the absence thereof I am of the opinion that the period of suspension shall not count as pensionable service. Once it is held so petitioner has not put in qualifying service for grant of pension and as such respondents have not erred in denying the same. 14. I do not find any merit in this application and it is dismissed accordingly.